NCJ Number
86266
Date Published
1982
Length
26 pages
Annotation
This essay reviews the moral principles underlying the current debate about the particular rights prisoners should be accorded, identifying and appraising the arguments that may be presented on each side.
Abstract
Most of the rights claimed for prisoners are not among Thomas Hobbes' natural rights and are not likely to be found among the special rights that come through particular transfers or agreements; nor are they to be counted among the liberties permitted by the sovereign, for these are few and easily withdrawn through new regulations. John Locke also fails to provide principles for basing prisoners' rights in natural law. Social philosophers such as Shaw, Wootton, and Menninger argue that punitive incarceration violates prisoners' rights, because deviant behavior is essentially a disease for which a person should be treated rather than punished. Just deserts theorists, on the other hand, argue that a prisoner's only right is punishment, purchased by his decision to break society's laws. This second argument can be challenged by maintaining that punitive institutions themselves engage in the same kinds of behavior for which prisoners are punished, so that institutionalized punishment tends to set a double ethical standard for individual citizens and society's criminal justice institutions. One right an inmate might claim and others deny is the right to write a letter. Of the arguments against such a right, the only reasonable ones are based in institutional security, institutional function, and considerations of equal rights (it is unreasonable that all inmates should have this right). All other arguments against this right are based on confusions or unacceptable theories, or are limited to conclusions about the absence of any currently enforceable constitutional or legal rights. Still, because of the few but valid arguments against prisoners' rights cannot be rebutted in particular cases without appeal to empirical considerations often difficult to establish, prisoner rights advocacy will remain a difficult struggle. Forty notes are listed.